Appeal
from the Order Entered December 29, 2021 In the Court of
Common Pleas of Bucks County Civil Division at No: 2021-61552
MEMORANDUM
STABILE, J.
Appellant
Michael Urban ("Michael"), appeals from the
December 29, 2021 order entered in the Court of Common Pleas
of Bucks County, prohibiting Michael from having any contact
with Appellee, Anthony Mark White ("Anthony").
Michael argues that the trial court erred as a matter of law
when it determined that Anthony had standing to file a
petition against Michael under the Protection from Abuse
("PFA") Act, 23 Pa.C.S.A. § 6101, et
seq. We agree with Michael that Anthony lacks standing
because Michael and Anthony are not "family or household
members" as defined in Section 6102 of the Act. Because
the trial court erred when it found standing, we vacate the
December 29, 2021 order.
The
trial court summarized the procedural history of this case in
its Rule 1925(a) opinion, explaining that Anthony filed a
petition on August 30, 2021
seeking a PFA order against Michael. A temporary order was
entered in response. Michael filed a motion for
reconsideration. The temporary order was extended until
December 29, 2021, when the court conducted a hearing. At the
conclusion of the hearing, the court denied Michael's
reconsideration motion and entered a final order granting
Anthony's PFA petition for a period of
three-years.[1] This timely appeal followed. Both Michael
and the trial court complied with Pa.R.A.P. 1925.
Michael asks us to consider one issue in this appeal:
Whether the trial court erred as a matter of law in finding
that [Anthony] had standing to file a petition under the
[PFA] Act, 23 Pa.C.S.A. § 6101, et seq. as
[Michael] and [Anthony] are not "family or household
members, sexual or intimate partners, or persons who share
biological parenthood." 23 Pa.C.S.A. § 6102.
Michael's Brief at 4.
Initially,
we note that our standard of review "regarding an issue
of standing under the [PFA] Act is de novo and our
scope of review is plenary." B.R.S. v. J.L.,
236 A.3d 1167, 1168 (Pa. Super. 2020) (citing McCance
v. McCance, 908 A.2d. 905, 908 (Pa. Super.
2006)). In B.R.S., this Court explained that
[t]he goal of the PFA Act is protection and prevention of
further abuse by removing the perpetrator of the abuse from
the
household and/or from the victim for a period of time. As for
individuals who may seek refuge within the confines of the
Act, the statute's protective sphere encompasses
"family or household members." In section 6102 of
the Act, the term "family or household members" is
defined as,
Spouses or persons who have been spouses, persons living as
spouses, parents and children, other persons related by
consanguinity or affinity, current or former sexual or
intimate partners or persons who share biological parenthood.
Id. at 1168-69 (cleaned up) (quoting
McCance, 908 A.2d at 908).
The
trial court summarized the testimony presented at the
December 29, 2021 hearing as follows:[2]
During the hearing, Michael testified that Anthony is dating
[Michael's] wife Traci. [Michael] explained that he, from
day one, has had an "open" relationship with Traci.
He was aware that she was having sex with other men,
including Anthony. The petition for protection against abuse
order filed by Anthony checked off the box listing Michael as
a "current or former sexual or intimate partner with
Anthony." To dispute this, Michael testified that he is
not currently having a sexual relationship with Anthony and
has not had an intimate relationship with him. Michael stated
that he has never been in the same room as Anthony other than
when he first saw him in the Prothonotary's Office on
January 6, 2021, while Michael was filing a PFA against Traci
and Traci was, at the same time, filing a PFA against
Michael.
Traci testified that Anthony is now her live-in boyfriend.
Michael is her soon-to-be ex-husband and they had been
legally separated for about one year at the time of the
hearing. She met Anthony at the pool room where she worked.
She had known him for four years and has been romantically
involved with him almost two years.
Traci explained that one of Michael's sexual fetishes was
to "watch Traci be with other men and watch, listen, and
participate on occasion." Because of this, when Traci
discovered that Anthony was interested in her, she told
Michael. Michael approved, requested, and encouraged Traci to
have a sexual relationship with Anthony so he could listen to
them have sex. In fact, Michael wanted to meet Anthony, and
later introduced himself to Anthony and shook his hand at
Traci's New Year's Eve 2019 to 2020 work party. Also,
"Traci would be encouraged and asked by Michael to go
have sex with Anthony. And then Anthony would ejaculate into
her vagina, and she would go home and Michael would orally
take it out of her vagina."
Anthony did not originally know that Traci was going to call
Michael on the phone and place him on speaker so he could
listen to them having sex, but later, did know and consent to
it. In addition, Michael and Anthony negotiated for time
spent with Traci. Once, while Traci was in bed with Anthony
at his house, Michael and Anthony discussed, over the phone,
that Anthony could have Traci, but Michael wanted her for
Friday nights, "whether it be sexual or dinner or
whatever," and insisted that Anthony respect that
request.
Traci did not know of any occasion where both men were
physically in the same room or house when she was having sex
with Anthony.
Traci and Anthony had become closer, started to exclude
Michael from their relationship, and Traci told Michael that
she wanted to leave him. Traci planned to separate from
Michael in December of 2020.
Trial Court Rule 1925(a) Opinion ("TCO"), 5/10/22,
at 4-5 (references to notes of testimony omitted).
The
court noted that problems arose after Michael was removed
from the triangular relationship. "They now menace each
other as they (at the same time) seek PFAs against each
other." Id. at 6 (footnote omitted).
The
trial court explained that, after listening to the testimony,
the court "found that there was an 'intimate'
relationship between [Michael, Anthony, and Traci] because
they were all aware of and consented to a triangle sexual and
intimate relationship. They openly, verbally shared [Traci]
sexually and the time they each spent with her."
Id. at 6. Quoting McCance, the court agreed
with Anthony that the PFA Act "is designed to promote
peace and tranquility of households, and among family members
and intimate partners who reside or have resided
together." Id. (quoting McCance, 908
A.3d at 907). The court also quoted this Court's opinion
in B.R.S. in which we reiterated that
the persons who undoubtedly fit the Act's definition of
family or household members-e.g., spouses,
parents, children, relatives, paramours, and
persons who undertake romantic relationships-typically
share some significant degree of domestic, familial and/or
intimate interdependence. There is often an
obvious emotional bond. Frequently, these individuals
interface in very practical areas of private life-a mutual
residence, common family obligations and/or shared
involvement in the affairs of day-to-day living. .
. . In sum, the persons protected by the Act as a family or
household members have a connection rooted in blood,
marriage, family-standing, or a chosen romantic
relationship.
Id. at 7 (emphasis added by trial court) (quoting
B.R.S., 236 A.3d at 1169) (in turn quoting Scott
v. Shay, 928 A.2d 312, 315 (Pa. Super.
2007)).[3]
Interpreting
the case law, the trial court "affirmed that the parties
in this case had a prior intimate relationship and/or
affinity to one another encircling romantic and family
matters[.]" Id. The court repeated its
statement made at the conclusion of the December 29, 2021
hearing, noting:
[T]he facts that have been established-and they include that
there was a permission given by Michael for his wife and
Anthony to be engaged in sexual relationships and that there
was participation on the part of Michael even though it was
on a segmented and from a temporal standpoint-it was
segmented in time. But in terms of transactions and the
relationship matter was one that was a continuing single
episode [sic].
As a result, there were sexual relationships as I find the
testimony of Traci as being credible. And, frankly, there was
confirmation of that credible testimony of wife by Michael
when he admitted that he gave permission for that sexual
relationship to take place.
Therefore the relationships were sufficiently intimate for
purposes of activating the standing for bringing an action
under the PFA Act. And, therefore the court concludes that
standing does exist. And Anthony may proceed as a potential
protected party under the Act.
Id. at 7 (quoting Notes of Testimony, 12/29/21, at
46-47).[4]
As
noted at the outset, our standard of review regarding the
issue of standing under the PFA Act is de novo and
our scope of review is plenary. B.R.S., 236 A.3d at
1168. To qualify for protection under the PFA Act, Anthony
must demonstrate that he is "family or household
member" under
23 Pa.C.S.A. § 6102, i.e., "[s]pouses or
persons who have been spouses, persons living as spouses or
who lived as spouses, parents and children, other persons
related by consanguinity or affinity, current or former
sexual or intimate partners or persons who share biological
parenthood." Clearly, Michael and Anthony are not now,
nor have they ever been, spouses, persons living as...
